Principles of Islamic Jurisprudence by MH kamali

Principles of Islamic Jurisprudence by MH kamali

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Unformatted text preview: y need a brief explanation. It is well to point out in this connection that almost every concession that the Lawgiver has granted to the individual is based on certain causes which must be present if the concession is to be utilised. The Lawgiver, for example, enacts traveling, illness or removal of hardship into the cause of a concession in regard to, say, fasting or salah. In classifying sahih and batil as sub-divisions of declaratory law, it will be further noted that a hukm is valid when the conditions of its validity are fulfilled, and is invalid if these conditions are not met. In short, since the last two divisions are basically concerned with causes and conditions, they are included under the class of declaratory law. [44. Qasim, Usul, p. 228; Abu `Id, Mabahith, p. 105.] We shall now proceed to discuss each of the five varieties of al-hukm al-wad'i separately. II.1 Cause (Sabab) A sabab is defined as an attribute which is evident and constant [wasf zahir wa-mundabat] and which the Lawgiver has identified as the indicator of a hukm in such a way that its presence necessitates the presence of the hukm and its absence means that the hukm is also absent. A sabab may be an act which is within the power of the mukallaf, such as murder and theft in their status as the causes of retaliation (qisas) and a hadd penalty respectively. Alternatively, the sabab may be beyond the control of the mukallaf such as minority being the cause of guardianship over the person and property of a minor. Principles of Islamic Jurisprudence ~ Kamali 291 When the sabab is present, whether it is within or beyond the control of the mukallaf, its effect (i.e. the musabbab) is automatically present even if the mukallaf had not intended it to be. For example, when a man divorces his wife by a revocable talaq, he is entitled to resume marital relations with her even it he openly denies himself that right. Similarly, when a man enters into a contract of marriage, he is obligated to provide dower and maintenance for his wife even if he explicitly stipulates the opposite in their contract. For once the Lawgiver identifies something as a cause, the effect of that cause comes about by virtue of the Lawgiver's decree regardless of whether the mukallaf intended it to be so or not. [45. Shawkani, Irshad, p.6; Khallaf, `Ilm; p. 118; Abu `Id, Mabahith, p. 92.] II.2 Condition (Shart) A shart is defined as an evident and constant attribute whose absence necessitates the absence of the hukm but whose presence does not automatically bring about its object (mashrut). For example, the presence of a valid marriage is a precondition of divorce, her it does not mean that when there is a valid marriage, it must lead to divorce. Similarly, the ablution (wudu') is a necessary condition of salah, but the presence of wudu does not necessitate salah. A condition normally complements the cause and gives it its full effect. Killing is, for example, the cause of retaliation; however, this is on condition that it is del...
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This note was uploaded on 04/13/2013 for the course ISLAM 101 taught by Professor Islam during the Spring '13 term at Harvey Mudd College.

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